Legal reforms Kenya can borrow to regulate microtargeting

In weighing the measures to take when regulating microtargeting, it is imperative to identify the boon and bane of micro-targeting. This enables legislators and online platforms to come up with measures that also recognise the benefits of micro-targeting. In Kenya, there isn’t a single comprehensive law that regulates microtargeting. However, some laws contain provisions that are applicable to microtargeting practices for instance the Constitution, Computer Misuse and Cybercrimes Act and Data Protection Act.

While analyzing the risks of microtargeting, the benefits of it cannot be understated. Microtargeting also ‘facilitates democracy in action.’¹ One of the benefits of microtargeting is that it allows campaigns to reach an audience that is interested in the message and this prevents the waste of resources in connecting with audiences that are not interested in the message. This makes ‘campaigning and advocacy more effective and less expensive.’² Another benefit is that through ‘ad targeting politics are made personal’³ and voters can be reached by candidates on issues that they care about.⁴

Also, microtargeting enables campaigns and groups to reach citizens with messages in their first language.⁵ This is ideal, especially in countries like Kenya where there are different tribes. The targeting methods employed ‘increase civic engagement and also political participation among non-English speakers.’⁶ The ability to reach citizens who don’t speak English allows campaigns and groups to reach a wider audience which would not be possible if it was done only in English.

Microtargeting also plays an important role in aiding grassroot fundraising.⁷ Funding appeals in online ads are beneficial for candidates and also independent groups.⁸ This is because it enables candidates to raise enough money for running competitive campaigns without the need of seeking large donations.⁹ The benefits of microtargeting as illustrated above are therefore important when factoring in the measures that should be taken when formulating legal and online measures. The risks involved also need to be analysed so as to come up with comprehensive laws.

A number of countries have come up with laws to regulate online micro targeting and Kenya can learn from some of these countries when coming up with microtargeting laws. An overview of some of these laws will inform the legal measures that can be implemented in Kenya. The Kenyan legislations play a significant role in regulating microtargeting. However, some gaps exist in these legislations and they include:

1. Lack of precise rules on the use of personal data for political micro-targeting.

2. Lack of a clear definition of political advertising. Without a clear definition, it leads to ambiguity on what it exactly entails and also legal uncertainties.¹⁰ The definition also needs to encompass online political advertising.

3. They don’t specify a time period when online political advertising is allowed. This will play an important role in preventing political micro-targeting malpractices during an election period. For instance Article L. 52-1 of the France Electoral Code prohibits that during the six months prior to an election, “the use, for the purpose of election propaganda, of any commercial advertising in the press or any means of audio visual communication.’¹¹

4. They lack rules on transparency of data with regard to online political advertising. This is an important feature because people should know ‘who is targeting them and why they are being targeted.’¹² Through transparency in data use, individuals can gain a greater understanding of the impact of online political advertising especially for researchers.¹³

The above are just some of the existing gaps in the Kenyan laws and this is the reason why there should be a comprehensive law that addresses microtargeting holistically. In an effort to regulate microtargeting, different countries have come up with laws that Kenya can learn from and these laws can inform legislators on what they should include during the law making processes. The external regulatory initiatives that can inform the legal measures Kenya can implement are as discussed below.

External regulatory initiatives that Kenya can borrow from

A number of countries have come up with initiatives to regulate online political micro targeting and Kenya can learn from these countries. Some of these countries include Canada, France, Ireland, Singapore and the United States. For instance in Canada, the Elections Modernization Act amended the Canada Elections Act and came up with new transparency rules for elections. It also regulates campaign advertising through social media platforms such as Facebook, Google and Twitter.¹⁴

The Elections Modernization Act introduced the term “online platforms” and it includes, ‘an Internet site or Internet application whose owner or operator in the course of their commercial activities, sells, directly or indirectly, advertising space on the site or application to persons or groups.’¹⁵ The introduction of this term was important because it extended the regulatory extent of the Canada Elections Act. The definition also applies to online platforms whereby election advertising also takes place.¹⁶

The Act also requires that ‘the owner or operator of an online platform that sells, directly or indirectly, advertising space to the following persons and groups shall publish on the platform a registry of the persons’ and groups’ partisan advertising messages and election advertising messages published on the platform during that period:

1. A registered or eligible party

2. A registered association

3. A nomination contestant

4. A potential candidate or a candidate; or

5. A third party that is required to register under subsection 349.6 (1) or 353(1).’¹⁷

The owner or operator of the online platform is required to keep the information in the registry for five years thus preventing the information from being destroyed when it is required urgently such as in cases of litigation or when there are ‘ investigations for breaches of the Elections Act.’¹⁸

In France, Article L 163-1 provides that, ‘during the 3 months before the first day of the month of general elections until the date of the ballot, online platforms must display to users information on:

• The identity of the individual or on the company name, registered office and corporate purpose of the legal person and of the person on whose behalf, where applicable, it has declared that it is acting, which pays for the promotion of content related to a debate of general interest.

• Use of personal data when promoting content related to a debate of general interest.

• The amount received in return for the promotion of such content when the amount exceeds a determined threshold, which should be made public.’¹⁹

The same Article L 163-1 also has a record-keeping requirement which requires that online platforms create a register of promoted content.²⁰ Article L.52-1 of the France Electoral Code also prohibits that during the six months before an election, ‘the use, for the purpose of election propaganda, of any commercial advertising in the press or any means of audiovisual communication.’²¹

In Singapore, they have a Code of Practice for Transparency of Online Political Advertisements which is also known as the Political Advertisements Code. The Code ‘sets out the obligations that prescribed digital advertising intermediaries and internet intermediaries have to comply with to enhance the transparency of online political advertisements.’²² It defines what political advertisement entails.²³

The Code also has a disclosure requirement for online political advertisements.²⁴Additionally, there is a record-keeping requirement provided by the legislation and it provides that ‘a record of all such online political advertisements, regardless of whether the advertisement has been removed by the person or organisation who requested or paid to place the advertisement’, must be kept and made available for viewing by the POFMA office…’²⁵

In the United States of America (USA), some states have come up with laws to regulate online political advertising. For instance in Maryland, there exists the Online Electioneering and Transparency and Accountability Act which defines an online platform as, ‘any public-facing website, web application or digital platform including a social network, ad network or search engine..’²⁶Also under the Act, an online platform shall be made available for public inspection.²⁷The Act defines electioneering communication and it includes ‘….a qualifying paid digital communication or an advertisement in a print publication that refers to a clearly identified candidate or ballot issue…’²⁸

Other initiatives in the United States include the New Jersey Legislature amendment, the Bolstering Online Transparency Act and Social Media Disclose Act which are both from California, the New York Election Law Rules and Regulations amendments, the Vermont General Assembly amendment, Washington State Legislature amendments and Wyoming State Legislature amendment.

In the Netherlands, the Dutch Code of Conduct Transparency Online Political Advertisements was published so as to address election transparency issues and disinformation in the digital sphere.²⁹It also covers paid online political advertising.³⁰ In part 3.2 of the code, political parties commit to ‘refrain from psychological profiling for targeting purposes in online political advertising.’³¹Also online platforms commit to ‘develop and enforce relevant transparency mechanisms’ with regards to political advertising.³²

In conclusion, micro-targeting has its own benefits if it is not misused. However, it becomes a matter of concern when the data that is collected is misused thus infringing on the privacy of the voters. The laws in Kenya protecting privacy, the use of data and regulating computer-related offences play a significant role in ensuring that people are protected and that action is taken against those who infringe on the privacy of individuals. In as much as the laws play an important role, microtargeting practices need to be regulated especially because digitization is an enabler of spreading information fast thus reaching a wider audience. The laws discussed above from different countries worldwide are just some among others that provide a good basis for formulating a comprehensive law in Kenya that addresses online political microtargeting and that fills gaps not addressed in the laws applicable to microtargeting in Kenya.

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